Carstensen v. Faber
| Decision Date | 29 June 1962 |
| Citation | 17 Wis.2d 242,116 N.W.2d 161 |
| Parties | Baldwin CARSTENSEN et al., Appellants, v. James L. FABER, a minor, by Charles F. Smith, Jr., his Gdn. ad Litem, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Nikolay, Jensen & Scott, Medford, for appellants.
Smith, Puchner, Tinkham & Smith, Wausau, for respondents.
The appellants' first contention is that the evidence established as a matter of law that Faber was negligent with respect to speed. They argue that Faber's testimony regarding his speed was incredible in the light of the physical evidence.
Faber testified that he was traveling within the speed limit (55 mph) just prior to the accident. The physical facts indicate that Faber's brakes were locked for a distance of 82 feet prior to impact, and that his automobile skidded an additional 110 feet after the impact. Photographic exhibits of the damaged automobiles indicate that the collision was a violent one.
The jury apparently believed Faber's testimony that he was traveling within the speed limit. The first question presented, therefore, is whether the physical facts render his testimony incredible so as to compel this court to hold him negligent with respect to speed as a matter of law. In resolving this question it is necessary to review the evidence in a light most favorable to Faber. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 83.
Faber skidded a considerable distance both before and after the impact. The evidence established that Faber's person was thrown forward violently by the impact, and he was thereafter unable to control his automobile. The length of the skid marks was a factor to be weighed by the jury. Lengthy skid marks do not necessitate a finding of speed as a matter of law. The appellants have relied upon our statement in Rademan v. Rankin (1961), 13 Wis.2d 319, 323, 108 N.W.2d 371. They point out that in that case we held that skid marks of 32 feet eight inches before the impact and 34 feet after the impact raised an inference of speed. It should be noted, however, that in the Rademan case the skidding automobile pushed the other automobile sideways a distance of over 34 feet. Also, the trier of fact in the Rademan case made a finding that there was excessive speed. We merely determined that the record contained evidence which supported such a finding. The Rademan case does not stand for the proposition that skid marks of a particular length require a finding of excessive speed as a matter of law.
In Milwaukee A. M. Ins. Co. v. Farmers M. A. Ins. Co. (1957), 2 Wis.2d 205, 208, 85 N.W.2d 799, 800, the court, in quoting Kleckner v. Great American Indemnity Co. (1950), 257 Wis. 574, 577, 44 N.W.2d 560, stated:
In Strnad v. Co-operative Insurance Mutual (1949), 256 Wis. 261, 273, 40 N.W.2d 552, 560, the court stated that:
'Long experience has shown that in all except in a very few cases the position of the cars and their condition after a collision has very little, if any, probative value.'
See also New Amsterdam C. Co. v. Farmers M. A. Ins. Co. (1959), 5 Wis.2d 646, 94 N.W.2d 175. Cf. Evjen v. Packer City Transit Line (1960), 9 Wis.2d 153, 100 N.W.2d 580.
The physical facts in the case at bar do not necessitate a finding that Faber was speeding. The same set of facts could conceivably support a jury finding of negligent speed. However, where different inferences may reasonably be drawn from credible evidence, the question is for the jury, and its findings will not be disturbed. Maccaux v. Princl (1958), 3 Wis.2d 44, 87 N.W.2d 772; Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740.
There is one further point raised by the appellants with respect to Faber's speed. During the course of the trial, an offer of proof was made by the appellants. The offer was that a witness, Herbert Greitsch, who had not observed the automobiles involved in the accident but who had heard Faber's vehicle approaching...
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...Whether or not expert opinion should be admitted into evidence is largely a matter of the trial court's discretion. Carstensen v. Faber (1962), 17 Wis.2d 242, 116 N.W.2d 161; Anderson v. Eggert (1940), 234 Wis. 348, 291 N.W. A significant portion of the testimony of witness Eidem as to dama......
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